Ngawati v Police - [2022] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-111

[2022] NZHC 2156

BETWEEN
HARE WILLIAM NGAWATI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 August 2022

Appearances:

A J McKenzie for Appellant

G E R Alloway for Respondent

Judgment:

29 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 August 2022 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

NGAWATI v NEW ZEALAND POLICE [2022] NZHC 2156 [29 August 2022]

[1] The appellant, Mr Hare Ngawati was sentenced by Judge Hix in the District Court to 22 months’ imprisonment on the following charges:

(a)possession of a pistol without lawful purpose;1

(b)possession of ammunition without lawful purpose;2

(c)possession of a class A drug (methamphetamine);3

(d)possession of a pipe for consumption of methamphetamine;4 and

(e)breach of release conditions.5

[2] Mr Ngawati appeals this decision on the grounds the Judge erred by uncritically adopting the starting point given in the sentencing indication (which Mr Ngawati had rejected), and which was, in any event, too high, leading to a manifestly excessive sentence.

Facts

[3] The breach of release conditions charge relates to Mr Ngawati’s multiple failures to report to Community Corrections at the required time, beginning in late 2021.

[4] On the evening of 30 January 2022, police stopped Mr Ngawati’s vehicle. He was identified as having an active warrant for his arrest, a search of the car was undertaken, and Mr Ngawati was placed under arrest.

[5] The search of the car revealed a revolver-style .22 pistol with the hammer pulled back and a round in the chamber. Seven rounds of ammunition were in the

1      Arms Act 1983, s 45(1); maximum penalty 4 years’ imprisonment or a fine not exceeding $5,000.
2      Arms Act, s 51(1); maximum penalty 3 years’ imprisonment or a fine not exceeding $4,000.
3      Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty six months’ imprisonment and/or a fine not exceeding $2,000.
4      Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty 1 year imprisonment and/or a fine not exceeding $500.
5      Parole Act 2002, s 71(1); maximum penalty 1 year imprisonment or a fine not exceeding $2,000.

pistol’s cylinder magazine. Police also found two small quantities of methamphetamine and a glass pipe.

Principles on appeal

[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.7 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ngawati v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 2156
Decision Date: 29 August 2022

CaseChat Overview and Summary

The case of Ngawati v Police involved the appellant, Hare William Ngawati, who appealed his 22-month imprisonment sentence imposed by Judge Hix in the District Court. The charges included possession of a pistol and ammunition without lawful purpose, possession of methamphetamine and a pipe for methamphetamine consumption, and breach of release conditions. The appeal centered on the District Court's adoption of a starting point from a previous rejected sentencing indication, which the appellant argued was too high and led to a manifestly excessive sentence.

The legal issues before the court were whether the District Court Judge erred by uncritically adopting the starting point from the rejected sentencing indication, and whether the resulting sentence was manifestly excessive. The court assessed the appropriateness of the starting point and the overall sentence, considering the aggravating and mitigating factors in light of relevant case law.

The court found that the adoption of the starting point from the rejected sentencing indication was not in error, as the District Court Judge had assessed the extent to which the indication should be considered and made adjustments as appropriate. The court further held that the starting point, while towards the upper limit of the available range, was not outside the range demonstrated by other cases. Moreover, the overall sentence, taking into account the various uplifts and discounts, was not manifestly excessive, especially as it allowed for the possibility of home detention.

The appeal was dismissed, and the original sentence was upheld. The court ordered that the judgment be sent to Mr A J McKenzie, the appellant's solicitor, and Raymond Donnelly & Co., Christchurch.

Orders